What Really Happened In Court Over ‘Blurred Lines’?

Blurred Headlines, they ought to call it. There’s a frenzy of information in the media after a California federal judge denied a motion for summary judgment in the dispute between Marvin Gaye’s heirs and Robin Thicke, Pharell Williams (and company) on a claim of copyright infringement.

As Mr. Gaye might have sung: What’s going on? What is going on is this: copyright infringement for a musical composition is complicated. The court has to decide whether the provisions of the Copyright Act of 1909 control (they do) or if the 1976 Act control (they don’t). In part, this means that many elements of the Blurred Lines song are not going to be considered at trial in determining how similar, if at all, the composition is to Marvin Gaye’s Got To Give It Up (and After The Dance).

If this song were written at a later time and covered by the more recent copyright act, many of the different elements upon which the Gaye camp are claiming infringement would be part of the court’s determination, and that would appear to have been helpful to their side. But as it stands now, after this decision, the review is going to be on a much narrower basis. This could mean in theory that copying will not be deemed “infringing,” because of the law that applied to this work.

Emily Ratajkowski and Robin Thicke, still from music video for “Blurred Lines”

This is a serious, serious copyright law decision about a phenomenally well-known, successful and popular song and video. In the end, the judge only said that this dispute was too complicated to decide early. It has to go to trial. It’s noteworthy, but maybe not so newsworthy. Music fans may not be expecting to see a 28-page opinion with 3 detailed expert reports and an analytic dissection (the judge’s term) of the respective works in a case like this. This is not decided by a judge who listens to both songs and says “oh yeah, they definitely rock the same beat.” The court looks at signature phrases, hooks, hooks with backup, theme, backup vocals, backup vocals with melody, percussion choices, harmonics, melodics and an octave of other considerations, all interspersed with photos of comparative musical scores. The matter was in the news even before this decision was issued, thanks to Mr. Thicke’s admission that he was high at the time of his deposition. Nonetheless, the court gave him a pass. There was no “hey, that’s not my problem” from the judge. Rather, he declined to find Thicke’s admissions or testimony to be controlling, at least at this stage, because of the inconsistencies.

In the humdrum but absolutely typical judicial language of this case, all this decision said was that the Gaye camp “have identified these with particularity for purposes of analytic dissection” — that legal questions may exist. “Thus, genuine issues of material fact are present as to the extrinsic similarity of the works. The intrinsic similarity of the works is a jury question.”

But back to those headlines. My favorite is:

“Robin Thicke, Pharrell May Lose ‘Blurred Lines’Lawsuit.” This was courtesy of the Music Times. I’ve been litigating these kinds of cases for a long time. I think it is a pretty safe bet to say that one of the parties may lose the suit.

Marvin Gaye in 1973, photo credit Wikipedia

Most of the headlines were a little more like “Pharell, Robin Thicke Can’t Kill‘Blurred Lines’ suit.” Fair enough. This has come from the website LAW360 whose job it is to report on legal matters, so we’d hope they would get it right.

The Huffington Post says that “Robin Thicke and Pharrell Lose First Round of ‘Blurred Lines’ Lawsuit.” Sort of true. Summary Judgment was not the first round by any objective legal standard, but it certainly is a milestone along the litigation road.

I was disappointed/happy not to see more reports of the judge finding the lines blurred between what is and is not infringement. That however is more or less where we are. These decisions often command a symphony of analysis. Whether the trial of this conflict strikes the right chord: we will have to wait and see.